EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Osborne Lord Johnston Lady Dorrian	[2008] CSIH 50 A631/05 OPINION OF THE COURT delivered by LORD OSBORNE CRAIG MOORE Pursuer & Respondent; Against THE SCOTTISH DAILY RECORD & SUNDAY MAIL LIMITED Defenders & Reclaimers; _______

Act: Smith, QC; Harper MacLeod - (Pursuer & Respondent)

Alt: Dunlop, Advocate; Balfour + Manson LLP, for Levy & McCrae, Glasgow

- (Defenders & Reclaimers)

19 March 2008

[1] In this action, the pursuer and respondent sought damages from the defenders and reclaimers in respect of defamation of him by them alleged to have occurred in consequence of material published on 4 January 2005 in an article in the Scottish Daily Record Newspaper. After certain procedure, on 7 February 2007, the Lord Ordinary, following a procedure roll debate, made no order in hoc statu in the action. She allowed the defenders and reclaimers four weeks from that date within which to lodge answers to the pursuer's chapter 54 minute, if so advised, and made certain other orders. On 16 February 2007, on the unopposed motion of the defenders and reclaimers, she granted leave to reclaim the interlocutor of 7 February 2007. The defenders and reclaimers duly reclaimed. They lodged grounds of appeal in which they submitted that the Lord Ordinary had erred in refusing to dismiss the action, as they had sought.

[2] The reclaiming motion came before this court on 19 March 2008. At the outset of the hearing, it was indicated by counsel for the pursuer and respondent that the case had been settled. He explained that this settlement had been reached at a very late stage. There had been no suggestion of the possibility of settlement when the case appeared in a By Order Roll hearing under Rule of Court 6.3 on 13 February 2007. However, agreement had been reached in the course of the week preceding the date fixed for the commencement of the reclaiming motion. It was accepted that it was most unfortunate that the court's time had been wasted by this late settlement. Neither party was seeking to blame the other as responsible for the situation. No expenses were being sought by either party.

[3] Both counsel said that they foresaw that the court might be considering the making of an order such as that made in John Billig & Another v The Council of the Law Society of Scotland [2007] CSIH 86, in response to the waste of the court's time occasioned by the late settlement of the action. In that case the petitioners had been made liable to the Scottish Court Service in the daily court fees which would have been due had the reserved diet not been aborted. Counsel for the pursuer and respondent submitted, however, that the making of such an order in the present case would be incompetent. In his submission, there was no legal basis for such an order, which amounted to the imposition of taxation upon a member of the public without lawful authority. The case of Billig & Another v The Council of the Law Society of Scotland, a decision by a court of three judges, in that respect, had been wrongly decided. Counsel moved us to remit the present case to a court of five judges, so that his contention could be considered by a court that would have the power to overrule the decision concerned. It would be inappropriate for the court to interpone authority to the joint minute for the parties and bring the present litigation to an end until the issue of its powers to make an order such as was made in Billig & Another had been clarified. Senior counsel for the defenders and respondents had no opposition to that motion.

[4] While a full argument in relation to the issue described was not deployed before us, we were persuaded that there was serious doubt as to whether the court had had the power to make the order that it did in Billig & Another v The Council of the Law Society of Scotland. In these circumstances, it appeared to us proper that the matter should be the subject to full argument before a court having the power, if so advised, to overrule that decision, before this court finally disposed of the present litigation. It was in these circumstances that we pronounced the interlocutor of 19 March 2008. It appeared to us that the issue in question was one of general importance to the litigating public, which ought to be resolved. We intimated the terms of a interlocutor to the Scottish Court Service, in order that they might instruct counsel to represent them at the hearing, if so advised. In respect that it appeared to us appropriate that there should be full argument on the matter and that the court should be referred to all relevant sources of authority, we requested the Lord Advocate to nominate an amicus curiae, if so advised. That has now been done. We also continued the motion in respect of the Joint Minute for the Parties to a date following upon the decision by a bench of five judges on the matter of the powers of the court to make a order such as that under consideration.